A Tufts student, Madelyn “Madie” Nicpon, 20, is the latest fatality in an eating or drinking contest. We have previously discussed (here, here, here, here, and here) such competitions from a liability standpoint. This was a charity contest but raises the question of whether it is reasonable to hold such contests that encourage rapid eating or drinking given the obvious danger of choking or other risks. Conversely, participation is voluntary and these individuals assume the risks of such contests.
The contest apparently occurred in the town of Somerville, Massachusetts, on private property with the Lacrosse team called the Jumbos. Nicpon, who was known as “Scooter,” was studying biopsychology with hopes of working in the medical field.
A year ago, Sacred Heart University settled another case that we discussed. In that case, Sacred Heart University student Caitlin Nelson choked to death at a charity pancake-eating contest in March 2017. The university argued that her “injuries and damages were caused in whole or in part” by Nelson’s own “carelessness and negligence.”
These cases raise difficult issues of negligence and countervailing questions of comparative negligence and assumption of the risk. Most of these contests include express waivers signed by the competitors. However, some do not. One case did however go to a decision. The family also sued the contractor who recommended pancakes for the eating contest.
The Superior Court of Connecticut rejected an effort by the contractor (“Chartwells”) to disclaim any responsibility given its limited role:
“The question here regarding Chartwells’ duty is not controlled by whether it was present at the event or supervised the contest or the participants, but is premised on the allegations of the complaint indicating that it participated in the decision selecting pancakes to be used as the food for the eating contest.
To explain further, Chartwells may contend that it could not have either known or reasonably anticipated that the use of pancakes for the contest posed any risk greater than the use of any other food used in such contests. Such an argument, however, does not involve whether a duty of care exists, as argued in the motion to strike, but involves whether any such duty was violated, which presents a question for the trier of fact.”
In any Tufts litigation, the first question is whether any waivers were signed. However, there remain the plaintiff conduct questions. The danger of choking is obvious in such contests. Under the old contributory negligence standard, the student could be entirely barred from recovery since even one percent of fault attributed to the plaintiffs would result in such a bar. Most states are now comparative negligence jurisdictions following either pure or modified approaches.
Massachusetts is a modified or partial comparative jurisdiction where a plaintiff can be contributory negligent and recover so long as she was less than 51 percent at fault. Thus, under Section 85, if the student is found to be more than 50 percent at fault, she is entirely barred. Note however that your percentage of fault below 51 percent is still applied against your damages. Thus, if you were awarded $100 but found to be 40 % at fault, you would recover only $60.
Thus, there are potential arguments on both sides though a written waiver could frustrate any effort at holding the school liable in such a tragedy.